8/12/2019 AG Opinion Request HB 1009

1/7

MEMBERS:LLEN FLETCHERVICE-CHAIR

MARIANN H. MORELOCKCoMMrTTEE CLERK

DAN FLYNNTIM KL INSCHMIDT

KENNETH SHI ETSGEORGE LAVENDER

COMMITTEE ONHoMELAND SECURITY & PuBLIC SAFETY

TONY DALEPHILIP CoRTEZ

RON SIMMONSRECEIVEDOCT 21 2013

OPINION OMMITTEEjOE C. PICKETT

CHAIROctober 21,2013

FILE /YL -f1 Lf2o -1.0. #3- t- : '2 = -

The Honorable Greg AbbottAttorney General of the State of TexasATIN: Opinion CommitteePO Box 12548Austin, TX 78711-2548- 1158 G

Re: Whether a school district may, pursuant to its general authority to authorize a personto carry a firearm on school property under Penal Code 46.03(a)(l), authorize anemployee and/or a trustee to carry and use a concealed handgun at any meeting of agovernmental entity (despite Penal Code 46.035(c)) and/or on the premises wherea high school sporting event or interscholastic event is taking place on schoolproperty (despite Penal Code 46.035(b)(2)), and related questions.Dear Attorney General Abbott:

Pursuant to the authority to issue advisory opinions granted to the Attorney General in22 of Article IV of the Texas Constitution and 402.041, t seq of the Texas GovermnentCode, this letter is being submitted to request an opinion regarding certain provisions of theTexas Penal Code.

BACKGROUNDSchool districts across Texas use a variety of school safety measures for the protection ofchildren, staff and visitors. When it comes to armed protection on school property, some largerdistricts staff an entire school district police department; some hire a school resource officer; andsome contract with other local law enforcement on a part-time basis . Many school districts donot have any on-site armed protection and continue to rely solely on other local law enforcementto protect students just as any other citizen.In recent years, some school districts, typically smaller rural districts, have used existinglaws to create policies that allow their school boards to authorize, as allowed by Penal Code46.03(a)(l), designated employees to carry a concealed handgun on school property pursuant towritten regulations- discussed below as a Guardian Plan. The 83rd Texas Legislature, with thepassage of HB 1009, created another option for school districts. HB 1009 specifically authorizesa school board to designate an employee to serve as a licensed "School Marshal" - discussedbelow as a School Marshal Plan.

MAILING ADDRESS: P.O. Box 2910 AU ST IN, TEXAS 78768-2910OFFICE LOCATION: E2.146 512) 463-0133

8/12/2019 AG Opinion Request HB 1009

2/7

The Honorable Greg AbbottOctober 11 2 13Page

While the Guardian Plan and the School Marshal Plan are similar, there are differenceswhich may cause a school district to select one plan over the other. In fact, with the requiredtraining under the Marshal Plan not expected to be established until at least January 2014, themajority, if not all, of school districts that have adopted either plan are going with the GuardianPlan. Generally, the Guardian Plan gives the school board broader discretion in defining the planthrough written regulations; whereas the School Marshal Plan has very specific requirements andconstraints. The differences are discussed below.

uardian PlanSeveral school districts across the state have elected to authorize designated persons(typically an employee with other primary duties) to carry a firearm on school property in aneffort to protect students, staff and others from armed intruders. 1 Such an authorization istypically included as a part of a school district's board policy and accompanying writtenregulations or administrative procedures. A sample policy is attached as Exhibit A). Mostschool districts refer to this authorization as a Guardian Plan (originally coined by the firstTexas school district to adopt such a plan Harrold lSD). While some school districts adopted aGuardian Plan prior to 2013, the tragedy at Sandy Hook Elementary has resulted in these plansbecoming more prevalent.The legal authority for a Guardian Plan is primarily found in Penal Code 46.03(a)(l), incombination with a school board's general authority to manage and oversee public schools underEducation Code 11.15l(b) and 11.1511(b)(15).

Penal Code 46.03(a)(l) states in pertinent part:

Sec. 46.03. PLACES WEAPONS PROHIBITED.(a) A person commits an offense if the person intentionally, knowingly, or recklesslypossesses or goes with a firearm, illegal knife, club, or prohibited weapon listed inSection 46.05(a):

(1) on the physical premises 6f a school or educational institution, any grounds orbuilding on which an activity sponsored by a school or educational institution isbeing conducted, or a passenger transportation vehicle of a school or educationalinstitution, whether the school or educational institution is public or private,unless pursuant to written regulations or written authorization of the institution.(Emphasis added).

1 nTexas, there at least 10 school districts that have approved such authorization through the adoption of policiesand procedures commonly referred to as a Guardian Plan - Cayuga ISO Central Heights ISO Ganado ISO HarroldlSD Huntington lSD Louise lSD Union Grove lSD Westwood ISO and Van ISO.

8/12/2019 AG Opinion Request HB 1009

3/7

The Honorable Greg Abbot tOctober 11 2 13PageTexas Education Code 11.151 (b) and 11.1511 (b )(15), state in pertinent part:

Sec. 11.151. IN GENERAL.(b) The trustees as a body corporate have the exclusive power and duty to governand oversee the management of the public schools of the district. All powers and dutiesnot specifically delegated by statute to the agency or to the State Board of Education arereserved for the trustees, and the agency may not substitute its judgment for the lawfulexercise of those powers and. duties by the trustees.

Sec. 11.151. SPECIFIC POWERS AND DUTIES OF BOARD. . . . (b) The board shall:

(15) carry out other powers and duties as provided by this code or other law.(Emphasis added.)The requirements of a Guardian Plan are generally within the broad discretion of theschool district as long as the requirements are included in written regulations as required byPenal Code 46.03(a)(1), and are in compliance with any other applicable laws. Typically,school districts adopt a broad policy allowing the board to authorize a Guardian(s) to carry ahandgun on school property and to use it under limited defined emergency situations. (SeeExhibit A) The school district will also typically have accompanying detailed procedures withother requirements and restrictions (e.g., concealed handgun license ( CHL ) requirements,training, scope of authority). The procedures are typically kept confidential as part of thedistrict's Emergency Operations Plan ( EOP ). See Tex. Educ. Code 37.108 (most of EOP isconfidential). Thus, under Penal Code 46.03, a school district may through written regulationsauthorize the carrying of fireanns on school property (e.g., a Guardian Plan).However, a typical requirement within the written regulations is that a Guardian musthave a current CHL. In turn, Penal Code 46.035 lists various locations where a CHL isprohibited from carrying a handgun, including a sporting or interscholastic event, and a schoolboard meeting, as follows:(b) A license holder commits an offense ifth license holder intentionally, knowingly, orrecklessly carries a handgun under the authority of Subchapter H Chapter 411,Government Code, regardless of whether the handgun is concealed, on or about the

license holder's person:(2) on the premises where a high school, collegiate, or professional sporting eventor interscholastic event is taking place, unless the license holder is a participant in theevent and a handgun is used in the event;

8/12/2019 AG Opinion Request HB 1009

4/7

The Honorable Greg AbbottOctober 11 2013Page

(c) A license holder commits an offense if the license holder intentionally,knowingly, or recklessly carries a handgun under the authority of Subchapter H Chapter411, Government Code, regardless of whether the handgun is concealed, at any meetingof a governmental entity.(Emphasis added.)Thus, the potential conflict between these two provisions raises the issue of h e t ~ e r aschool board's authorization under a Guardian Plan overrides the apparent prohibition for a CHLto carry at a school board meeting and/or at a school sporting or interscholastic event on schoolproperty.

Schoo Afarsha PlanHB 1009, the Protection of Texas Children Act, was signed into law effective June 14,

2013. The new law specifically creates an additional category of certified peace officer called aSchool Marshal who may carry a concealed handgun on school property, and it authorizesschool boards to designate a school employee as a school marshal - commonly referred to as aSchool Marshal Plan.The School Marshal Plan under HB 1009 has specific requirements and constraints - one

of which is that the person must be an employee. The employee must also: Be licensed under the TCLEOSE2 school marshal training program as set forth inOccupations Code 17021. 260 (which does not currently exist, but will be added to theOccupations Code no later than January 1 2014); Obtain a CHL issued under Chapter 411 of the Government Code; Complete 80 hours of instruction designed to:

o Emphasize strategies for preventing school shootings and for securing the safetyof potential victims of school shootings;

o Educate a trainee about legal issues relating to the duties of peace officers and theuse of force or deadly force in the protection of others;o Introduce the trainee to effective l w enforcement strategies and techniques;o Improve the trainee's proficiency with a handgun; ando Enable the trainee to respond to an emergency situation requiring deadly force,such as a situation involving an active shooter; and

Pass a psychological examination administered by TCLEOSE.

2 Beginning January 1, 2014, with the passage of S 686 in the 83rd legisla tive Session, TCLEOSE will be renamedTexas Commission on l w Enforcement ( TCLE ).

8/12/2019 AG Opinion Request HB 1009

5/7

The Honorable Greg AbbottOctober 11 2 13Page

If an employee meets these requirements and voluntarily agrees to serve, the board oftrustees of a school district may appoint that person as a School Marshal. Other requirements orrestrictions include: The board may appoint not more than one School Marshal per 400 students in averagedaily attendance per campus (and that School Marshal may serve only at that designatedcampus); Once selected, the School Marshal may carry a concealed handgun on the premises of aschool, except if the primary duty of the School Marshal involves direct contact withstudents, in which case, the Marshal may only possess a handgun in a locked and securedsafe within the marshal's immediate reach; The handgun carried on or within the immediate reach of the School Marshal must beloaded with frangible ammunition designed to disintegrate on impact; A School Marshal may only use the handgun when circumstances would justify the use

of deadly force under Penal Code 9.32 and 9.33; and A School Marshal' s license expires on the marshal 's first birthday two years after theMarshal was first licensed, and then it must be renewed every two years, by:

o Completing combined TCLEOSE approved classroom and simulation training notto exceed 16 hours;o Demonstrating appropriate knowledge on an examination designed andadministered by TCLEOSE;o Demonstrating handgun proficiency to the ~ a t i s f a c t i o n of commission staff; ando Demonstrating psychological fitness through a TCLEOSE administered exam.

Because of these stringent e q u i r e ~ e n t s many school districts are expected to choose (orcontinue with) a Guardian Plan instead of a School Marshal Plan. Under a Guardian Plan, theschool district has greater flexibility and may defme its own written regulations. Onesignificant difference is that a School Marshall must be an employee. s a result, some districtsthat wish to designate a school board member(s) as a Guardian are bypassing the option of aSchool Marshal Plan and opting for the Guardian Plan.3

3 The bill analysis for HB 1009 seems to clarify that a School Marshal Plan is not the only means by which districtemployees can possess handguns for he protection of students: The Background and Purpose section of the billanalysis states:It has been observed that a few schools have adopted policies that allow teachers who areconcealed handgun license holders to carry a irearm In school buildings and on school grounds.In an effort to provide an additional aptian for protecting students, faculty, and other staff inTexas schools, H B 1009 seeks to authorize a school district. to appoint school marshals

8/12/2019 AG Opinion Request HB 1009

6/7

The Honorable Greg AbbottOctober 11 2 13Page

QUESTIONS PRESENTED1. Does a school district's written authorization allowing either an employee or trusteewho has a CHL to carry and use a concealed handgun on school property pursuant toPenal Code 46.03(a)(l) (Guardian Plan) override the prohibition against a concealedhandgun license holder from carrying a handgun at any meeting of a governmentalentity under Penal Code 46.035(c)?2. Does a school district's written authorization ailowing either an empioyee or trusteewho has a CHL to carry and use a concealed handgun on school property pursuant toPenal Code 46.03(a)(l) (Guardian Plan) override the prohibition against a concealedhandgun license holder from carrying a handgun on the premises where a highschool, sporting event or iriterscholastic event is taking place on school propertyunder Penal Code 46.035(b)(2)? 3. Would serving as a Guardiart .under a school district's Guardian Plan fall within the

scope of official duties of a school .board trustee under Texas Education Code11.15ll(b)(l5)?4. f the answer to question nos. and/or 2 above is No, may a school districtsimultaneously appoint one employee to serve as a School Marshal under HB 1009(to ensure an armed presence at school board meetings and sporting events), andappoint another person to serve as a Guardian under a Guardian Plan (to allow

f l e x i ~ l i t y in its armed presence in other loc1;1tions ?DISCUSSION:QUESTIONS 1 AND 2

Question nos. and 2 are treated t ~ g t h r since they are similar in nature and involve thesame two statutes. The crux of the issue is whether a school board's written authorization tocarry under a Guardian Plan (to either an employee or a trustee with a CHL) may includecarrying at a school board meeting or at a school sporting or interscholastic event on schoolproperty despite the apparent prohibitions for a CHL to carry in those locations under PenalCode 46.035. DISCUSSION: QUESTION 3

3. Would serving as a Guardian under a school district's Guardian Plan fall withinthe scope of official duties of a school board trustee under Texas Education Code11.15ll(b)(15)?One potential issue for a school district that authorizes a school board member to serve asa Guardian is whether or not such an authorization would fall within the scope of official dutiesfor the board member. This is important for purposes of potential liability as a well as liabilityinsurance coverage in the event a trustee authorized as a Guardian is ever required to take action.Obviously, if carrying a concealed handgun is not authorized by law, and therefore beyond thescope of a trustee's official duties, a school district would likely not grant such authority sinceany action by that board member as a Guardian would almost assuredly not be covered under theschool district's liability insurance policy. The question appears to be whether or not the school

8/12/2019 AG Opinion Request HB 1009

7/7

The Honorable Greg AbbottOctober 11 2013Page 7board s authorization itself, or the general statutory authority given to trustees, would support theconclusion that serving as a Guardian is within the official duties of a school district trustee.

The Attorney General considered a similar, but not determinative, issue in AttorneyGeneral Opinion Number GA-1008 (June 10, 2013). In GA-1008, the Texas Medical Boardadopted a resolution allowing their investigators to carry concealed handguns while on duty.One of the issues raised in this opinion was whether or not the board would be protected undersovereign immunity if it adopted the resolution.Even though a medical board investigator s typical duties did not require carrying aweapon, the Attorney General determined that if the board adopted the resolution for theiremployee investigators to carry concealed handguns, the resolution would not waive immunitybecause the investigator would be acting within the scope of his or her employment if soauthorized. See ]Lopez v Trevino, 2 S.W.3d 472,474 (Tex. App-San Antonio 1999 pet. dism dw.o.j.) (holding that the establishment of general policy is a legislative function) (Emphasis

added). Based upon the rationale in GA-1008, it appears that any school boirrd trustee who isauthorized to serve as a Guardian would be acting within the scope of his official duties as longhe acts within the authorization provided by the board of trustees.DISCUSSION: QUESTION 4

4. May a school district simultaneously appoint one person to serve as a School Marshalunder HB 1009 and another person to serve as a Guardian under a Guardian Plan?In the event a Guardian is unable to carry a concealed handgun at a school board meetingor sporting or interscholastic event on school property, a school district may wish to authorizeboth a School Marshal (who may carry at a school board meeting arid/or sporting event as acertified peace office) and a Guardian (for other circumstances). The legislative history of HB1009 makes it clear that a School Marshal Plan is simply another option, and no part of HB 1009appears to prohibit using both methods. As such, it appears that school district couldsimultaneously adopt a School Marshal Plan and a Guardian Plan to allow more comprehensivearmedprotection. _Thank you for your time and consideration with regard to this matter. If you need anyadditional information, please do not hesitate to 90ntact me.

i ~ c e r e l y ~

~ k l tChairmanHouse Committee on Homeland Security and Public SafetyCc: The Honorable Jason Villalba

The Honorable Travis Clardy